In re Paris W.

Filed 6/22/07 In re Paris W. CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

Appellant Earl W. (Father) was incarcerated a few months after the commencement of a proceeding under section 300 of the Welfare & Institutions Code[1] regarding his two children with Nancy M. (Mother). The proceeding was eventually terminated and custody granted to Mother. Because Father was being held at a prison nearly 300 miles from Mothers home at the time of termination, he requested the juvenile court to require Mother to bring the children to visit him at the prison twice a year. Although the court refused to enter the requested order, it did direct Mother to cooperate with Fathers family members in the event they sought to take the children to visit Father. Father challenges the refusal to compel Mother to make these visits. We affirm.

I. BACKGROUND

On November 16, 2004, Contra Costa County Children and Family Services Bureau (Agency) filed petitions under section 300, with respect to Paris W., then two years old, and M.W., then one year old. Mother was described as homeless, while the whereabouts of Father, at the time an alleged father, were unknown. The petitions alleged that Mother had a serious and chronic substance abuse problem, had been involved in several incidents of domestic violence that placed the children at risk, and had physically abused Paris. The investigative report submitted with the petition stated that, three weeks before the petition was filed, three of Mothers childrenParis, M.W., and an older child of Mother fathered by a different manwere living with their paternal grandmother, who had difficulty caring for them. At the time, Father, who had recently been released from jail on a charge of domestic violence, was also living with the childrens grandmother. Father acknowledged having been detained on claims of domestic violence against Mother some 20 times, although he denied ever having hit her. The investigative report documented a violent incident between Mother and Father during the two weeks preceding the filing of the petition as well as violence by Mother against the children.

Father failed to appear at the first three hearings, finally attending a hearing on January 3, 2005. At that time, the court scheduled a contested hearing. Father did not attend the contested hearing or the continued contested hearing, at which the petition was sustained. The disposition report noted that Father had never contacted the attorney appointed to represent him in the proceeding, was not visiting the children, and had not contacted the Agency since his initial court appearance.

Because he had not established paternity, Father was initially denied reunification services. In March, Father filed an acknowledgement of paternity of Paris and M.W. and was deemed their presumed father. Fathers attendance at subsequent hearings was spotty, his last attendance occurring in May. The report prepared for the six-month review in August noted that there was no record that Father had visited the children during the reporting period and that Father had not contacted the Agency during that time. A search located Father at a jail in Clayton.

Father did attend a hearing in October, but he was excused from the hearing due to inability to stay awake. Thereafter, he failed to communicate with the Agency until he was located in December in a Martinez jail for an alleged car jacking. At a December hearing, the children were returned to Mother.

By the time of the next six-month review hearing in May 2006, Father was imprisoned at San Quentin and had not responded to Agency inquiries. Mother had not taken the children to visit him there. Mother had, however, avoided drug abuse and appeared to be making strides toward becoming a capable parent.

By the time of a contested hearing held July 24, 2006, Father was incarcerated at the High Desert State Prison, located in Susanville, east of Redding near the Nevada border. Fathers counsel requested an order requiring Mother to take the children to the prison twice a year to visit. Counsel argued that, [M]other and [F]ather have had opposition at various times throughout this case, and so the Court should view [M]others opposition to an order requiring her to arrange visits just twice a year with [Father] as an indication that [M]other will not arrange visitation with [Father] even twice a year. Mothers counsel argued that the burden of transporting two children such a long distance was simply too great for Mother, who had no ready means to make the trip.

The juvenile court denied Fathers motion, noting initially that the history of violence in the family is a clear indicator to me that there is potential[] difficulty between both of the parents, and to require [M]other then to bring children to visit, what appears to have been the batterer, at least in this history, troubles me. The court continued, Now, it also bothers me that these children are two and three years old. Susanville is 280 miles for [M]other who lives in Pittsburg. And I have trouble with a two and three year old. I can tell you that its very difficult to keep them in a car seat, or in any sort of situation, for more than 45 minutes to an hour, . . . much less public transportation. [] . . . I appreciate that [the children] know and love their father. On the other hand, forcing this upon both the mother and the kids, I think, would be incredibly inappropriate for the kids, so Im not going to force it on them. However, I am going to ask that [Mother] cooperate with any relative of [F]athers who arranges a visit. The court thereafter granted custody to Mother, while ordering Mother to cooperate with appropriate [an] paternal relative to permit transportation of children to visit Father.

II. DISCUSSION

Father appeals the denial of his request for an order compelling Mother to bring the children to visit him in prison twice a year, arguing that the juvenile court abused its discretion because it is in the childrens best interest to preserve their relationship with their father.

Disposition of this motion rested in the sound discretion of the juvenile court. (In re Robert L. (1993) 21 Cal.App.4th 1057, 1067.) [T]he court is given wide discretion and its determination will not be disturbed absent a manifest showing of abuse. [Citation.] The appropriate test for abuse of discretion is whether the trial court exceeded the bounds of reason. [Citation.] A court has exceeded the bounds of reason by making an   arbitrary, capricious, or patently absurd determination. . . .   [Citation.] Broad deference must be shown to the trial judge. The reviewing court should interfere only  if we find that under all the evidence, viewed most favorably in support of the trial courts action, no judge could reasonably have made the order that [s]he did.   [Citation.] (In re Sabrina H. (2007) 149 Cal.App.4th 1403, 14201421.)

The juvenile courts order was made pursuant to section 362.4, which provides that [w]hen the juvenile court terminates its jurisdiction over a minor who has been adjudged a dependent child of the juvenile court prior to the minors attainment of the age of 18 years, . . . the juvenile court on its own motion, may issue . . . an order determining the custody of, or visitation with, the child. The juvenile court may place appropriate conditions on any visitation ordered under section 362.4 and may deny visitation altogether in some circumstances. (In re Chantal S. (1996) 13 Cal.4th 196, 204, 214.) Accordingly, Father has no absolute right to an order requiring visitation with his children, and he rightly makes no such argument.

Every visitation order must be judged in the context of its unique circumstances. (See, e.g., In re Ronell A. (1996) 44 Cal.App.4th 1352, 1361.) There is no disputing many of the propositions on which Fathers argument is based. He is correct in arguing that he and his children share an interest in preserving their relationship, that this interest is not suspended by his incarceration, and that the visitation decision must be based primarily on the childrens best interests. None of these principles, however, is conclusive in the particular circumstances presented here.

Mother is struggling financially to support her children while overcoming a history of drug abuse. Father is incarcerated some 280 miles from their home, guaranteeing that any visit will require a commitment of two days and an overnight stay. Even if Mother had ready access to transportation, which she apparently does not, this would be a significant financial burden. Mothers relationship with Father was unstable, filled with anger and violence. It appears Mother no longer has an interest in maintaining a relationship with Father or visiting him for her own sake. As a result, the visits will be an emotional as well as financial burden on her. Although it is true that Father was living in the same home as his children when the Agency intervened, this appears to be largely coincidental. His contact with them after they were removed was minimal at best, only in part because of his periodic incarceration. Given these circumstances, the juvenile courts order was an appropriate compromise, preventing Mother from interfering in efforts by Fathers family to maintain his relationship with his children but not imposing upon Mother a financial and emotional burden she would have difficulty bearing. There was no abuse of discretion in this order.

Father argues that the childrens best interests, which must be the paramount consideration (In re Chantal S., supra, 13 Cal.4th at p. 206), requires that their relationship with him be maintained. The juvenile courts order did not, however, deny visitation to Father, or in any other way interfere with his relationship. On the contrary, if Fathers family wants to assist him in maintaining the relationship, Mother has an affirmative duty to cooperate. The juvenile court merely declined to impose on Mother the responsibility of maintaining that relationship by accomplishing those visits herself.

Moreover, the distinction Father draws between the interests of Mother and the interests of the children is a false dichotomy. The best interests of these very young children, barely more than infants, are inseparable from those of their caretaker. It is by no means clear that imposing upon Mother an expensive and time-consuming obligation to take them to visit a man with whom she had a difficult and violent relationship is actually in the childrens best interests, given the strain it will place on Mother and her resources.[2] The juvenile court therefore properly took into consideration the interests of Mother in making its visitation order.

The cases on which Father relies that have compelled visitation with incarcerated parents all arose in the very different context of reunification. (E.g., In re Dylan T. (1998) 65 Cal.App.4th 765; In re Brittany S. (1993) 17 Cal.App.4th 1399; In re Ronell A., supra, 44 Cal.App.4th 1352.) Unlike termination orders under section 362.4, [e]very order placing a minor in foster care and ordering reunification services must provide for visitation between the parent and the minor as frequently as possible, consistent with the well-being of the minor. (In re Christopher H. (1996) 50 Cal.App.4th 1001, 1008.) Visitation must be provided unless there is clear and convincing evidence that it would be detrimental to the child. (In re Dylan T., at p. 774.) The reason for this requirement is clear. Visitation during the period of reunification is critical, since a parent who is denied visitation will have great difficulty achieving reunification, and a failure to reunify can prejudice his or her parental rights. Orders of visitation under section 362.1, which governs visitation during the period of reunification, also place the burden of visitation on a different party from those under section 362.4. Whereas the parent with custody is responsible for visitation under section 362.4, orders under section 362.1 place the burden of accomplishing the visits on the voluntary, compensated participants in the child welfare system, the agency and the foster parents.

Yet even in the context of reunification, courts have held only that visitation is required when incarcerated parents are reasonably accessible to the home of their children. In the early case In re Brittany S., supra, 17 Cal.App.4th 1399, the mother was attempting to reunify with her children while she was jailed within 40 miles of their home. Yet the caseworker made no effort even to monitor the mothers progress, let alone to ensure that the children had regular visits with her. This was held to constitute an inadequate reunification plan, since it doomed the mother to lose her child, no matter what. (Id. at p. 1407.) Although the subsequent case In re Jonathan M. (1997) 53 Cal.App.4th 1234, disapproved on other grounds in In re Zeth S. (2003) 31 Cal.4th 396, 413414, held that fixed maximum distance limits on visits with incarcerated parents during reunification are per se unreasonable, the court recognized that distance was a factor to be considered in the analysis of visitation. (In re Jonathan M., at p. 1238.) Given the different considerations under sections 362.1 and 362.4 and the limited burdens permitted even under section 362.1, these cases do not compel a different result.

III. DISPOSITION

The orders of the juvenile court are affirmed.

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Margulies, J.

We concur:

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Marchiano, P.J.

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Stein, J.

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[1] All statutory references are to the Welfare and Institutions Code.

[2] Fathers claim that the conclusion of hardship to Mother is based on speculation, rather than evidence, is simply not true. While this evidence may not have been presented through live testimony at the hearing on Fathers motion, the record of the proceedings is full of properly considered evidence documenting Mothers struggles and her relationship with Father.